Jones v. United States

August 24, 2009

RAYMOND JONES, PETITIONER,v.UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Raymond Jones' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 For the following reasons, the Court denies Jones' Section 2255 motion.

BACKGROUND

On December 14, 2005, a grand jury indicted Jones for using unauthorized access devices, namely, stolen credit card information in violation of 18 U.S.C. § 1029(a)(2) (Count I); possessing fifteen or more unauthorized access devices, namely, unauthorized credit card account numbers in violation of 18 U.S.C. § 1029(a)(3) (Count II); knowingly, and with intent to defraud, possessing access device making equipment in violation of 18 U.S.C. § 1029(a)(4) (Count III); and knowingly possessing a counterfeit security of an organization in violation of 18 U.S.C. § 513(a) (Count IV). Jones entered a plea of not guilty on January 24, 2006. On June 20, 2007, Jones pleaded guilty to all four counts of the Indictment without a written plea agreement with the government.

At his change of plea hearing, the court advised Jones of the maximum statutory terms of imprisonment for the charges to which he was pleading guilty. (R. 13-2, Change Plea Tr., at 6.) In response to the court's inquiries, Jones, who was under oath, acknowledged that he understood that the sentencing guidelines, although advisory, would guide the court's sentencing determination. (Id. at 6-7.) Meanwhile, the parties informed the court that they did not agree on the applicable sentencing guidelines. Specifically, based on its preliminary calculations, the government estimated that Jones would qualify for an offense level of 26, and, as a Category I offender, the advisory guideline range would be 63 to 78 months' imprisonment. (Id. at 7-10.) On the other hand, Jones' counsel calculated his client's offense level to be 24 with an advisory guideline range of 51 to 63 months' imprisonment. (Id. at 8-10.) The court then explained to Jones that at the sentencing hearing the court would determine the proper offense level applicable to Jones' guideline range. (Id. at 10.) The court further advised Jones that "if it turns out that we're wrong in terms of the initial calculations and the calculations are either higher or lower than you presently believe them to be, then I am going to have to act on that higher or lower calculation, not the ones that we are talking about right now." (Id.) Jones expressly acknowledged that he understood that the court would make the final decision regarding his sentence. (Id.)

Also at the change of plea hearing and in response to the court's additional inquiries, Jones stated that he was voluntarily pleading guilty and that his decision to plead guilty was not the result of any threat or promise. (Id. at 15.) The court then accepted Jones' guilty plea. (Id. at 20.)

Prior to Jones' sentencing hearing, the probation office filed a Presentence Investigation Report ("PSR") calculating Jones' offense level as 19 and a criminal history category of I, with a corresponding advisory guideline range of 30 to 37 months' imprisonment. Jones' counsel then filed a sentencing memorandum in which he contested the probation officer's calculations and further advocated that the court, guided by Title 18, United States Code, Section 3553(a), impose a sentence of probation. (05 CR 1018, R. 54-1, Sent. Mem., at 2-4.)

At Jones' sentencing hearing on March 6, 2008, his trial counsel asked the court to impose a sentence below the advisory guideline range, namely, probation. (R. 13-3, Sent Tr. at 17.) Specifically, defense counsel argued that his client acted as a mere middleman, was repentant for his conduct, and that Jones had the potential to better himself. (Id. at 17-20.) During his allocution to the court, Jones apologized for his conduct and explained that he would lose business and educational opportunities if he were incarcerated. (Id. at 21-23.)

The court imposed a sentence at low end of the applicable guideline range -- 30 months' imprisonment. (Id. at 26.) The court explained:

Mr. Jones, you obviously are in some respects very bright, and in some respects, to use your phrase, dumb and young. Given the history of this kind of a case, people who get involved in frauds, at some point they have to go one way or the other, and they either get out of it and say: I'm not going to play those games anymore. I'm going to play it straight and play by the rules. Or they're stuck with it for life, and they just end up spending more and more of their time in prison one fraud after another.

I have been a judge now for 29 years, and once in awhile you get somebody who is a defendant that just getting them to do what they're supposed to do is very difficult. And you are certainly one of those few where it's just been a continual battle to get you to do what should have just automatically happened when you got in trouble.

And you've really got to ask yourself: What direction do I want to go? And 30 months, I agree, is a jolt. But it's a jolt, it seems to me, that, given your history, you really need. If you weren't as young as you are, and you didn't have as many opportunities to change as you do, it would be higher than that, because that's the bottom of the guideline range.

So what I'm saying to you, Mr. Jones, is you've got to look at yourself honestly and not blame somebody else, not put off on somebody else, and say to yourself: I'm the person responsible for my own actions. Whatever happens to me as a result of my own actions, I'm responsible for it, and it's not going to happen again. And that's the way you've got to go. (Id. at 26-28.)

After sentencing, Jones filed a timely notice of appeal on March 7, 2008. On November 6, 2008, Jones' appellate counsel -- finding no non-frivolous arguments to appeal -- filed a Brief in Support of a Motion to Withdraw pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d (1967). Jones did not respond to counsel's Anders brief. See Cir.R. 51(b). On February 27, 2009, the Court of Appeals for the Seventh Circuit granted appellate counsel's Anders motion and dismissed Jones' appeal. See United States v. Jones, 314 Fed.Appx. 876, 2009 WL 605911 ...

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